Adrian Pop v R

For attempted rape under s 1(1) of Criminal Attempts Act 1981, the prosecution must prove an intention to carry out the physical act of penetration, together with the circumstances and mental element required for rape under s 1(1) of Sexual Offences Act 2003. It need not prove a separate intention that the complainant did not consent. For a secondary party, the prosecution must also prove knowledge of facts necessary to make the principal’s act criminal, including the complainant’s lack of consent. A direction omitting that requirement was a misdirection. The conviction nevertheless remained safe because the evidence made the appellant’s knowledge inevitable and the jury could only have reached the same conclusion on the proper question. The appeal was dismissed.

The appellant was convicted in the Crown Court at Harrow of attempted rape as a secondary party to Hashemi’s attempted rape of an unconscious and heavily intoxicated complainant. He was also convicted of sexual assault, but that conviction was not challenged.

He appealed on two grounds: whether attempted rape required an intention that the complainant not consent, and whether a secondary party had to possess the principal offender’s rape mens rea. The Court of Appeal considered the interpretation of the Criminal Attempts Act 1981 and the Sexual Offences Act 2003, and whether the jury directions made the conviction unsafe.

Disposition. The appeal was dismissed. The court found a misdirection about the mental element required of a secondary party to attempted rape, but concluded that the conviction was safe.

1. Attempted rape. Under s 1(1) of the Criminal Attempts Act 1981, the prosecution must prove an act more than preparatory done with intent to commit rape. The intention concerns the physical act of penetration. The absence of consent and the absence of a reasonable belief in consent are the circumstances and mental element of rape under s 1(1) of the Sexual Offences Act 2003. A separate intention that the complainant not consent is unnecessary. The court followed R v Khan [1990] 2 All ER 783. The 2003 changes did not affect Khan’s ratio. The reasoning was reinforced by Attorney-General’s Reference (No 3 of 1992) [1994] All ER 121. R v Page and Rogers [2014] EWCA Crim 186 was distinguished because the full conversion offence in that case could never have been committed. The approach in R v Gould [1968] 2 QB 65 was applied, and there was no injustice in following Khan.

2. Secondary liability. Under R v Jogee [2016] UKSC 8, a secondary party must intend to assist or encourage the principal to act with the required mental element and must know the facts necessary to make the act criminal. Lack of the complainant’s consent is such a necessary fact. The appellant therefore had to know that LV did not consent. The trial direction, which asked only whether he lacked a reasonable belief in consent, was legally inadequate. R v Cogan and Leake [1976] QB 217 did not alter that analysis: the secondary party in that case was liable because he knew of the complainant’s lack of consent.

3. Direction and safety. The court accepted that, where the secondary party’s state of mind and the state of mind he would attribute to the principal were necessarily coterminous, the judge could elide the two questions into one intelligible question. That was permissible on these facts. Nevertheless, the jury should also have been asked whether the appellant knew that LV did not consent. The evidence that LV was unconscious, that the appellant had watched the events closely, and that he had helped remove her underwear made that knowledge inevitable. The jury’s conclusion on reasonable belief could only have rested on actual non-consent and the appellant’s knowledge of it. The misdirection therefore did not render the conviction unsafe.

• Court of Appeal (Criminal Division): The court found a misdirection concerning the mental element of a secondary party to attempted rape but held the conviction safe and dismissed the appeal: [2026] EWCA Crim 774 .
• Crown Court at Harrow: The appellant was convicted of attempted rape as a secondary party and of sexual assault. Only the attempted rape conviction was challenged.